SC declares backdated seniority in police service null and void

ISLAMABAD: The Supreme Court of Pakistan has settled the issue of back-dated seniority in Police Service of Pakistan by terming illegal all the antedate seniority given to the blue eyed officers during the past decades.
The back dated seniority has been a stigma on the face of PSP as officers were given seniority in back dates which made them seniors to their officers under whose command they have served. The land mark Supreme Court judgment handed by Chief Justice of Pakistan has put a full stop of all sorts of antedate seniorities which will affect a few Regional Police Officers, District Police Officers and dozens of Superintendents of Police.
The SC’s judgment issued January 6th 2015 says that there are at least three questions that needed to be settled. “First, that the determination of the questions will not only decide seniority between the parties before us but will settle generally the issue of seniority between the officers of the PSP initially appointed and those appointed from the provinces through encadrement. Secondly, the above objections are only confined to the decision of the Federal Service Tribunal relating to the encadrement of police officers from Khyber Pakhtunkhwa whereas three of the appeals pertain to the province of Sindh arising out of the judgments of the Sindh High Court against which no such objections have been raised and finally, though the departmental representation of Asim Gulzar dated 22.10.2007 mentioned the retrospective promotion of encadred police officers from Punjab, vide two notifications dated 04.2005 and 13.12.2006 he had generally represented against all such retrospective encadrements , as is obvious from Paragraph 16 where he makes the prayer: “the appointments of all officers of members of police cadre of a Province who have been given retrospective appointments in the PSP cadre should be declared null and void, especially the above mentioned officers ....”
While writing down the reasons of declaring back dated seniorities void, the SC said: “The Rules, 1985 provide 3 modes of appointments to the PSP: initial appointment (Rule 5), appointment of officer of the Armed Forces (Rule 6) and appointment of members of the Provincial Police (Rule 7). The seniority amongst the police officers is regulated by Rule 11 Clause “a” of sub-rule 2 of Rule 11 provides for seniority between the officers inducted into the Police Service of Pakistan through initial appointment. Clause “b” regulates the seniority of those appointed in the Police Service of Pakistan from the Armed Forces, whereas clause “c” deals with the seniority of the police official encadred from the provinces. The said Rules do not make any provision for determining seniority in between the various groups except to a limited extent under proviso to clause “b”, between initial appointees and the officers coming from the Armed Forces appointed in the same year; that the latter shall rank senior to those appointed through the process of induction through initial appointment.”
“However, there is no provision for regulating seniority between initial appointees and those encadred from the Provinces. Rule 11 therefore only provides criteria for determining seniority within each group. Rule 11(2)(c) is confined to determination of seniority amongst the encadred police officers.
Thus, where a question of seniority arises either between those coming from the same province or between officers encadred from different provinces the same will be determined in accordance with Rule 11 (2)(c). The said rule is thus to be restricted only to the determination of seniority in the encadred group and cannot be made applicable for determining their seniority vis -à-vis the other two groups.
Another aspect of the case is that Rule 11(2)(c) only provides for determination of seniority and not appointment. The appointments in the encadred group are made under Rule 7 which states that “Members of the Police cadre of a Province shall be appointed to the Service on the basis of selection made on the recommendation of the Governor”. Had the intention of the legislation been to make provision for retrospective appointment of such officers from the date on which the vacancy arose in a Province it would have been specifically mentioned in Rule 7. The use of the words “shall be appointed to the service” indicates that the appointment is to be with prospective effect and not retrospective effect.
The settled principle is that appointments are always prospective in nature notwithstanding a vacancy occurring earlier. This has been clearly held by this Court in the case of Khushi Muhammad (ibid) where it was held that “it would be against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them.”
“The appointment of the encadred police officers from the Provinces is to be made with prospective effect and retrospective effect can be given to such appointments only for the limited purpose of determining their own inter-se seniority in accordance with Rule 11(2)(c) of the Rules, 1985. In view of the above the notification dated 11.12.2007 appointing the police officers from the Province of K.P.K. w.e.f. 21.10.1997 retrospectively was in violation of Rule 7 of the Rules, 1985.
Similarly, the High Court of Sindh had erred in directing retrospective encadrement of Provincial police officers in PSP. These are the reasons for our short order of the same date which reads: “For reasons to be recorded separately, Civil Appeals No.1122 & 1123 of 2011 and Civil Appeal No. 1343 of 2014 are dismissed, whereas Criminal Appeal No. 436 of 2011 and Civil Appeal No. 431 of 2013 are allowed. The impugned judgments/orders are set aside.